1987 Legislative Session: 1st Session, 34th Parliament

HANSARD

The following electronic version is for informational purposes only.

The printed version remains the official version.

Official Report of

DEBATES OF THE LEGISLATIVE ASSEMBLY

(Hansard)

THURSDAY, MAY 14, 1987

Morning Sitting

[ Page

1143 ]

CONTENTS

Routine Proceedings

Vancouver Museum Foundation Act (Bill PR405). Mr. Mowat

Introduction and first reading –– 1143

Teaching Profession Act (Bill 20). Committee stage. (Hon. Mr. Brummet) ––

Mr. Jones

Mrs. Boone

Mr. Gabelmann

Appendix –– 1155

The House met at 10:07 a.m.

Prayers.

MR. PETERSON: Mr. Speaker, in your gallery this morning are

two members of the B.C. Printing Industries Association: Mr. Don Ogden

and Mr. George Smith from Vancouver. Would the House join me in

welcoming them.

MR. WILLIAMS: Mr. Speaker, I would hope the whole House might

acknowledge the presence in the precincts of Mr. Ed Broadbent — I think

the most popular leader in the country today.

HON. MR. REID: Mr. Speaker, I wanted to make special mention

of the famous tourist in Victoria today, because I understand he's here

in Victoria to be part of a film called "King for a Day."

MR. JONES: On a more serious note, I would like to have the

House acknowledge the presence of 31 grade 7 students, who are here

today from St. Helen's School. I think it's appropriate that they're

here today when we're debating the Teaching Profession Act. I would

like the House to make them very welcome.

Introduction of Bills

VANCOUVER MUSEUM FOUNDATION ACT

Mr. Mowat presented a bill intituled Vancouver Museum Foundation Act.

Bill PR405 introduced, read a first time and referred to the Select

Standing Committee on Standing Orders, Private Bills and Members'

Services.

Orders of the Day

HON. MR. STRACHAN: I call committee on Bill 20.

TEACHING PROFESSION ACT

(continued)

The House in committee on Bill 20; Mr. Pelton in the chair.

MR. CHAIRMAN: When we closed last evening, hon. members, we had just completed

section 46.

section 47.

MR. JONES: Mr. Chairman, perhaps before we begin I would like

to thank publicly the minister and his staff for materials that they

have supplied to me, with very kind regards. I appreciate that very

much and I think it speaks well of the spirit of cooperation that we've

talked about so often in this House. Hopefully those materials will

help the debate and make it a more interesting and worthwhile debate.

section 47, Mr. Chairman, I only have one question and that is just a mere

clarification of the meaning of that section. If I'm reading the

section

correctly, it's just one of those housekeeping amendments that removes the

power of cabinet to determine the types of certificates, the suspension and

cancellation of those certificates, and all we're doing here is transferring

the powers from the cabinet to the new college of teachers.

HON. MR. BRUMMET: Mr. Chairman, I appreciate the comments

from the member. As I think we've indicated, we want to make sure that

the bill is discussed and understood in all of its aspects, and

hopefully it can be without having to cross-reference three or four

documents. It should make it easier, and with any luck even expedite

the debate. However, the answer is yes; since the issuing of

certificates has been turned over to the college, then the

Lieutenant-Governor-in-Council and minister will no longer state the

type of certificate. So it's simply a transfer of power to the college.

Section 47 approved.

section 48.

MR. JONES: I think on the surface this looks like a similar

kind of situation. It appears that what we're doing here is amending a

section by striking out the words, "to whom has been issued a

certificate of qualification for teaching or a letter of permission for

teaching under this act and," and it appears that this is again because

of transferring the power to grant certificates from the cabinet to the

college. However, presumably the decision to remove this requirement

was part of a mechanical amending process in the ministry and merely

taking out sections of the act that referred to certification, but

there does not seem to be any corresponding transfer of this

requirement to the college. As I see it, what we're doing here is

removing certification and letter of permission requirements for

someone who is paid for teaching students in one of the remote rural

areas of the province where there are not enough children to form a

public school. But inadvertently the government appears to have opened

a loophole which would allow persons without a teaching certificate to

be paid by the minister to teach in areas where there are too few

students to qualify for a school.

If I'm correct in that, I might make a further suggestion. In order

to achieve what I think was the intent of this amendment, it was

probably a better procedure to amend by substituting some reference to

having to hold a certificate which now, after the passage of this bill,

would be issued by the college. Was it the intention of the minister to

remove the requirement to hold a certificate to teach in these rural

areas? If that's the case, then does the minister agree that the

striking of the words suggested here does open a loophole that would

allow the minister or some future minister to employ someone without a

certificate, or even a letter of permission, to teach in an area where

there are too few students to establish a public school?

[10:15]

HON. MR. BRUMMET: The initial change here was necessitated by

removal of "for permission for teaching under this act." In other

words, it has also allowed a certificate or a letter of permission

under the act in the future. At the same time, we recognized that we

didn't, in some cases where you have a remote area where there are no

schools or there are no other educational opportunities available....

By deleting this, the minister can proceed to try to provide

[ Page 1144 ]

some educational opportunity without having to go to the college for that.

I can give you perhaps the best example, that in some parts of the

province there might be three students taking correspondence courses

and there may be someone without a teaching certificate who could be

assisting them, and this empowers the minister to assist them. It is

just opening up that opportunity to provide education. It's fairly

specific. It is only in those instances where there aren't enough

students to create a school.

MRS. BOONE: It is my understanding that the letter of

permission is generally given to those people who do not hold a

certificate. Does the minister not think it's appropriate, before a

salary is paid to a person to teach, that they be given some

acknowledgement that they are at least qualified in some way to

actually teach, and that a letter of permission should be granted to

these people before they are paid any salary?

HON. MR. BRUMMET: The option is still there for someone who

is qualified and has a certificate to be employed, but it just says

now: "a person...who is employed with the sanction of the minister to

give instruction in the prescribed courses of study for public schools

to children of school age in a part of the Province where there are not

enough children available for the establishment of a public

school...." There are funds that can be put towards this salary, so

we're not trying to somehow or other put in unqualified people.

In a very remote

section of the province, where there is no teacher

available, we could give a letter of permission, I suppose, but then

letters of permission are limited in time, and that has now been turned

over to the college. So this simply allows us to pay someone or

remunerate someone who is, say, assisting students with instruction. If

it's a teacher, so much the better. That would be our preference in

every case, but there may be areas where there is no teacher available,

but some parent or member.... I was going to say "community," but

usually there is no community in a remote area. If there was, there

would be a school. Some person from that area can be reimbursed for

assisting students with their education, and instruction, of course,

could include supervising of correspondence courses.

MRS. BOONE: Well, it does say here that they are, with the

sanction of the minister, to give instruction. It seems to me that the

ministry is leaving this wide open when they are enabling people to

give instruction without even knowing if these people have any ability

at all or if they can even teach. Surely a letter of permission is the

least one could expect before you give the sanction to people to

instruct, which is what this act says — that you are sanctioning people

to give instruction. If the ministry is doing that, then I believe we

should at least have some form of letter, some form of recognition of

these people's qualifications that they are capable of doing this.

HON. MR. BRUMMET: The part that has been deleted is the part

that says "to whom has been issued a certificate of qualification for

teaching or a letter of permission for teaching under this Act

and...." This act, in this case, refers to the School Act. Since

certificates for teaching and letters of permission will now be issued

by the college, then, as I indicated, to have it under the School

Act.... There is no longer such an animal. There will be nobody issued

certificates under the School Act; they will be issued by the college.

So it removes that. You have to read the whole phrase. Yes, it does

leave it open to someone who is employed, with the sanction of the

minister.... The minister, through his ministry, is hardly going to

sanction someone and pay someone to assist somebody in a grade 11

sanction implies some assurance that that person is capable of doing

that.

The other alternative, if the member is leading to that, if there is

nobody with a teaching certificate, and someone doesn't qualify.... If

you put in a temporary letter of permission, they're generally

temporary for a specific purpose — to help, say, two students in a

remote area and assist them with correspondence. The instruction is

provided by the correspondence school. The supervision and the

assistance can be provided, and we can pay that person something to

help them, which does not require a teaching certificate. The

instruction is generally provided by the material from the

correspondence course.

MR. HARCOURT: Mr. Chairman, I would like to ask leave of the House to

make an introduction.

Leave granted.

MR. HARCOURIP: I am very pleased to be able to introduce a

visitor to British Columbia who is in Victoria today and then goes back

to Vancouver — a national leader with a 67 percent approval rating in

the polls who was very pleased to be here in Victoria to see, as

somebody from Ontario and from the Ottawa area, that we have our fifth

crop of flowers blooming. I hope we can give a very warm welcome to the

leader of the New Democratic Party in the federal parliament, Mr. Ed

Broadbent.

HON. MR. VANDER ZALM: Mr. Chairman, I want to take this

opportunity of congratulating the federal leader of the New Democratic

Party for the tremendous results which were obviously evident in the

media only a day or two ago. I think it speaks well for the leader; he

certainly has done a tremendous job. I had the opportunity of meeting

Mr. Broadbent in Ottawa only a week or two ago, and I am very

impressed, and I wish him well.

MRS. BOONE: Mr. Minister, I find it really difficult to

understand. In the past we have had this

part in there that made it

necessary for a person to have a certificate or a letter of permission

in order to receive funding from the provincial government to give

instruction. Now, for some reason or other, we have decided that it is

no longer necessary to have a qualified teacher — or even a teacher

with a letter of permission — to instruct in remote schools, and that

even if there are only two children, those children should not be

required to have the necessary qualified people there.

I understand that this has to be taken out to keep in line with the

college, but why was not something put in there that would make it

necessary for someone to have a letter of permission, at least — as a

very bottom line of qualification — in order to receive some kind of

funding from the provincial government? Surely that is not too much to

expect at this point.

[ Page

1145 ]

HON. MR. BRUMMET: Perhaps it would be something to expect the members

to also listen to the answers when I give them. I had indicated that the minister

can no longer issue a letter of permission. Therefore that has to come out of

the act. That is turned over to the college. However, the minister has a mandate

to try to provide an educational opportunity for every student in the province,

so we wanted to leave open the possibility for the minister to assist someone

who can assist some students in a remote area without having to go to the college

to apply for a letter of permission to have somebody supervise two students

way out there in the wilderness on correspondence course. Yes, it removes some

of this, but in the past it was a letter of permission. The minister could issue

the letter of permission. The minister can no longer issue a letter of permission;

that's up to the college. But the minister still has an obligation. If a

couple of students in September have moved out into a very remote area and need

some help, it should be possible for me to provide that help through my ministry.

So I think with the sanction of the minister....

I tried to indicate also that it is hardly a case of saying that we

are going to suddenly set up an instructional system where teachers do

not require certificates. Anytime we set up an instructional system, it

has to have a teaching certificate. We're talking about a few isolated

cases where the minister should be able to move to help those students

to get an education without having to go through the whole process.

I don't know if I can make myself any clearer. I'm sure the member's

going to stand up and ask the same question again. I can give you the

same answer.

MR. JONES: Perhaps what I should do is stop trying to find

loopholes in the drafting of the legislation, because obviously it was

drafted to produce the intent that the minister wanted.

I was suggesting that because these are public school students, and

we are talking about public education, and because I assume that it is

past practice to give some kind of sanction to these people.... It will

have been the minister who was allowed to do that; now this process is

being transferred to the college. If in my mind this was a

consequential amendment, and we were not changing things in the change

between the two acts, then we would have transferred that power that

the minister formerly had to the teachers' college. The teachers under

that college would now be able under legislation to grant letters of

permission to people in the situation that we're describing.

I don't know if it's appropriate to use the example of two students,

because I assume that in the past it was required to have a letter of

permission to do this kind of instruction for the government and

receive public moneys to do that. The short-term nature of letters of

permission I don't see as being a problem, because the minister has

said in this discussion that if there was a qualified teacher

available, then that would be the person the minister would prefer to

have teaching those students. So because school years do go on an

annual basis, it may be within the realm of possibility that at the end

of that school year there would be another person available who would

be better qualified and better able to give that instruction and

receive public moneys to do that.

[10:30]

So I was looking at this thing as a consequential amendment and as not a change

from what was past practice. We would simply transfer powers from the minister

to the college, and that doesn't seem to be what has happened. That's

what in my mind would be the result of a consequential amendment ––

I suppose the minister certainly has the right and privilege to change practice

as we're amending these bills, but I think it is clear that it is a change

of practice, and if that's the minister's intent, then we're clarifying

that process right now.

HON. MR. BRUMMET: Mr. Chairman, the college may issue letters

of permission to these people. That would be a form of sanction that

the minister would accept. The college can issue a certificate to

whomever applies and they feel qualifies. The college can issue

certificates to these people, but the college has absolutely no power

to fund some salary or some assistance to someone who is going to help

these students. So if we had scrapped the whole thing or turned the

whole

section over to the college, we would have given them a power

that they don't have. If we had left this deletion in, we would have

given a power to the minister that he no longer has. If you read it

correctly, the college can still issue certificates or letters of

permission — any of that. What this retains for the minister is the

right to provide some financial assistance to someone. So it is a

consequential amendment. It does make sense. It does technically

provide the powers to the minister that he needs in order to guarantee

that a student in a remote area can get some assistance with education,

and it still gives the college the right to issue a letter of

permission.

MR. JONES: I hesitate to tell the minister how to do his job,

because certainly he has worked hard on drafting this legislation. It

seems to me that if we want to continue past practice there are

legislative ways of achieving that, and, to me, that would be by

transferring the powers — as has been done, as the minister points out

— to the college to issue letters of permission. But it is the

responsibility of the government to pay the people in those situations,

and the legislation could simply say that we will fund only those

people who have been sanctioned to do this educational activity by the

college, whether it's through a certificate or through a letter of

permission.

I hope the minister appreciates the concern here, which is that

there be protection of students and that the whole business of

certification and letters of permission and all those kinds of things

is to ensure a vetting process — to ensure that the people who are

instructing the children of this province have gone through some

process. The minister quite rightly says — and I would trust him — that

he wouldn't pay anybody who wasn't the best qualified person to do that

job in the circumstance, but past practice has been that that has also

been sanctioned by a piece of paper — a certificate or a letter of

permission. The college can grant those and the minister can grant

funds to people who have been sanctioned by the college to do that

instructional activity.

I think it is a change in practice, and our concern is that it does

open up.... Let's suppose for example that I have a particular view of

education and I can't get a teaching certificate and I can't get a

letter of permission and I can't set up a school, so all I have to do

is take my eight students off to some remote part of the province and I

can be paid by the minister to do my will with these students. I'm sure

the chances of that example happening are remote, but it's a

possibility with this

[ Page 1146 ]

kind of thing, and I think that's the concern on this side of the House because of the change from past practice.

MR. GABELMANN: Mr. Chairman, I have a couple of quick

questions on this. Does this mean that the parent choosing to educate

his or her children at home could conceivably be paid a salary by the

minister, despite the fact that that parent holds no certificate?

HON. MR. BRUMMET: I'd say, Mr. Chairman, only in the possible

situation where a parent in a remote area might be reimbursed somewhat

for supervision of correspondence courses, but I don't see this as

opening it up to paying parents to teach their children. If you read

the whole thing, you'll find out that it's only applicable where there

are not enough children available for the establishment of a public

school — so it's pretty limiting to remote areas. It only takes ten

students to open up a school and eight to keep it open. So it does

that. Hopefully that clears it up for the member.

MR. GABELMANN: Perhaps, because I wanted to be brief, I

didn't do enough

preamble. A considerable number of communities in my

constituency — and, I assume, in the minister's constituency too; but

certainly in mine — have numbers of children anywhere from two or three

through to eight or ten, and they get into those marginal areas of

whether a school is appropriate or not –– I can think of at least half

a dozen communities where there are less than the eight for the

effective retention of a school. The situation there is that those kids

are often bused — not bused, but taken by boat, or by one form or

another — to a school, and often are boarded out. I'm wondering if the

intention of this was to allow for some person in that community,

whether it's a parent or somebody else, who (

a) is not an employee of

the board and (

b) is not a teacher holding a certificate from the

college –– I don't understand what the intent is, other than for this

kind of purpose: is it the purpose that there would be the opportunity

for, in effect, schools to be opened where there are less than eight or

ten children, and for those children to be taught by non-certified

teachers?

HON. MR. BRUMMET: It seems that the intent was very clear

until, I guess, some of your research people were looking at it. Where

a public school is available through busing, there are enough children

to make that. That has nothing to do with trying to remove the busing.

What you're saying is that there might be two or three pupils who are

now bused to a public school. There's nothing in this to suggest that

since 1920 anything has changed. Public school is available, through

walking access or through busing access or through whatever means. It's

where it's not available that we're talking about this — where there's

no public school.

I might as well point out at this point, too, about this whole

letter-of-permission line of questioning, that the college can issue

letters of permission for people to teach in the public school system.

There is no public school system here. These are not public school

students, because there is no public school. They are students who need

some help, and this is a way for the minister to provide it.

MR. GABELMANN: I don't want to get into a long discussion

about it, Mr. Chairman, but I thought the minister, coming from a rural

riding, would understand what I'm talking about. I'm talking about

communities that are not on a bus route; communities where when

students go to their school, it is overnight sometimes, or they go for

the week because they can't get back on a daily basis — logging camps

in inlets in various parts of the area. These kids at the present time

have these kinds of choices: they have the choice to be taught at home

by their parents, in the camp; or they have the choice to go and board

in a community some hours away. As I read the section, the minister

would now have the opportunity to pay these parents, or other people

who don't hold a certificate in that logging camp, to actually teach

these kids, rather than sending them away from home or spending the

excessive costs of the daily transportation to a school which may be

two, three, four hours away. Is that a fair...? If this were to pass

and be proclaimed, can I now propose to these parents that here's an

option for them, in terms of getting their kids educated?

HON. MR. BRUMMET: There is nothing new in this. Parents,

under the old system, could choose to educate their students there, at

home, or they could choose to send them to boarding school. That hasn't

changed. The right to pay has been in here.

MRS. BOONE: Mr. Minister, it has changed. In the past, those

people were required to either be certified or to get a letter of

permission. Those requirements no longer exist. So any person can apply

to the minister for sanction and receive funding for that. I know the

minister's time is very limited, and I can't see him or any one of his

staff traveling out to a remote area to ensure that the person who is

teaching them actually knows, or is qualified to teach, the various

subjects. So it has changed substantially, and I'm having a difficult

time understanding why the minister doesn't see that it has changed

substantially. You have taken out the requirement that makes it

necessary for a person to have a level of education themselves in order

for them to get funding from the ministry. You have taken that away.

There is nothing in here that indicates that a person must achieve any

kind of level, or achieve any kind of certificate, or do anything, in

fact, other than receive your sanction. I don't know how the ministry

is going to go about giving their sanction to people in remote areas,

without going in and investigating them and finding out different

things. It just seems a very difficult thing to me.

HON. MR. BRUMMET: Well, I wonder if the member could perhaps

give me her

interpretation of what it took to get a letter of

permission in order to do this in the past as compared to what it will

take now to be sanctioned by the minister to do that. The minister had

the full power, for anyone he wished to pay to help these students, to

issue a letter of permission, and that's the sanction. There wasn't a

set of requirements, some magic set of requirements for a letter of

permission that was somehow distinct from the sanctioning.

So I could have sanctioned under the past legislation. I could have

someone that could read and talk; I could have given them a letter of

permission to do that. The college now has certain requirements for a

letter of permission; now it's simply a case of sanctioning it. So in

that sense I don't see what has changed.

MRS. BOONE: Is the minister then saying that those people out

there with letters of permission who are teaching in our schools — and

a good portion of them are teaching in

[ Page 1147 ]

the private schools — have not met any qualifications and do not

have a standard that is applied to them before a letter of permission

is given to them; that teachers who are teaching in our private schools

can just be walking and breathing and you will give them a letter of

permission which allows them to be paid to teach? I mean, is that what

you're saying? Is that what has happened in the past? Is that going to

continue on in the letter of permission?

If that's the case, then why did we bother with the whole procedure,

the bureaucratic procedure of issuing letters of permission, and why

are we continuing to issue letters of permission through the college?

If it's an automatic sanction and anybody who is walking and breathing

has the sanction of the minister to instruct, then why don't we just

eliminate this whole bureaucracy and not even make it necessary to

pretend that we have qualified teachers or qualified people or

partially qualified people in our system?

Can the minister explain to me if there were no criteria ever

developed for the issuing of letters of permission for teachers in

either our public school or our private school system?

HON. MR. BRUMMET: Mr. Chairman, you see how the remarks are

distorted. There was no formal list of criteria for a letter of

permission. The letter of permission was determined generally by

someone who was recommended and could do the job until a qualified

teacher could be found. So that letter-of-permission aspect.... I said

that no formal requirement has been required for that letter of

permission, that the sanction of the minister would have turned that

into a letter of permission if and as required.

How you work the independent school or the private school situation

into this at all is beyond me, because there never has been a

requirement for someone to apply for a letter of permission to teach in

the private schools or any of the independent schools. There never has

been, not by the minister or anybody else. So this is not a change, and

how you infer, then, that because there has been no requirement for a

letter of permission for the private school the minister doesn't I care

about the quality of education is absolutely beyond me.

The private schools have to attract students; they have to I have

people there who can do the job. That's their job. So to say that I

don't care, that I want to sort of set up a system here of trying to

put unqualified people teaching students....

You keep referring to these students in these schools. There is no

school; that's why we have to help. If there is a school, all the rest

of the machinery kicks in.

[10:45]

Section 48 approved.

section 49.

MR. JONES:

Section 49 is repealing a

section that eliminates

dues check off for the B.C. Teachers' Federation, and as a result of

this change boards will no longer be required to deduct union dues for

any teacher organization. So we have dues check off now for the B.C.

Teachers' Federation and for, I presume under that umbrella, local

associations of the B.C. Teachers' Federation.

The minister has argued in debate on this bill — or at least it's my

interpretation — that he is taking a neutral role in all of these

things with regard to the B.C. Teachers' Federation and that this

change is a natural consequence of the changes in the bargaining

legislation and flows out of that. I realize that it's now possible for

the local association to negotiate such things as dues check off, and I

presume that will be true for both unions and voluntary local

associations. But if the minister is really suggesting a neutral change

here, and getting back into how I might have drafted the legislation,

wouldn't we see an amended wording rather than just a deletion?

Wouldn't we see a neutral version that might read something like:

"Boards shall deduct dues wherever the board and association is bound

by a collective agreement"?

HON. MR. BRUMMET: I thank the member for asking he question

and answering it as well. The compulsory membership, as we've

indicated, is not there, so you can't have a compulsory check off

system for the B.C. Teachers' Federation, as it states here.

The local association, which will be the primary agency now, can

negotiate, as part of the agreement, an automatic check off system if

they wish, with their school boards. But it's pretty difficult for the

act to require that. I might even point out to the member that the

automatic check-off system is a convenience that where the members have

the support and the requirement to pay their fees, I'm sure that most

boards would provide that convenience to the association. But there is

no automatic check off to the BCTF. That's why his

section has been

taken out.

MR. JONES: I think I was trying to be a little subtle and a

little clever in tying what I perceive as the position the minister has

taken on this whole issue with respect to the B.C. Teachers' Federation

and the impact of this legislation on that organization to what I see

here. I see the perception of what has happened by this change as not

being a neutral position. We've wiped off the boards in provincial

legislation — although it's not precluded — the sanction under

legislation for those kinds of agreements to take place and spelling it

out clearly so that it's there.

The minister must agree that the perceptions in this legislation are

important. We get reactions to this legislation. I think often the

government is wondering: "Why don't they like this?" It's often because

the true intent is not clearly spelled out, and the shades are not put

in there when they are intended.

I was suggesting, because of the neutral position of the minister,

that a more neutral wording that would not compel.... Again, the

minister used the word "require." I was not suggesting "require." I was

suggesting a wording like: "shall deduct wherever there is agreement."

I consider that neutral; it provides both for deduction and for

non-reduction where there is not an agreement.

I'm not talking about "require"; I'm talking about spelling out that

it is the option where there is an agreement to deduct; and where there

is not an agreement, not to deduct. That would be a neutral position.

My subtlety was in suggesting that the minister had taken a neutral

position, and in legislation this wording would be neutral, rather than

elimination of the whole section.

MR. CHAIRMAN: Shall

section 49 pass?

MR. JONES: I was hoping the minister would respond to the

neutrality point. If a wording such as I was suggesting — "shall

deduct dues whenever there is a local agreement" — is not acceptable to

the minister and he doesn't perceive that as

[ Page 1148 ]

a more neutral wording than merely elimination.... Maybe I am

talking about perceptions as much as possibilities, but I think they

are important.

What about a wording that just says "may deduct"? It requires no

compulsion. It spells out clearly that that is one of the possibilities

that a school board may or may not exercise. In legislation the word

"may" is permissive. This government would be sending a signal to local

associations and unions that that's an avenue that may result from a

local agreement, so they may or may not deduct local association dues.

HON. MR. BRUMMET: Mr. Chairman, certainly I'll comment on the

neutrality. I'm doing everything possible to stay neutral in this

situation and give the choice to the teachers. As to saying that the

option should be provided that they may, I say this legislation very

specifically provides that. It says the association may negotiate all

whether it's in legislation for other unions — that specific

requirement in the legislation that the employer "shall" do that.

That's usually negotiated and written into the agreement.

So yes, I am providing all of the options –– I don't need to say

"may be done" for everything that they may possibly want to negotiate

–– I have said they may negotiate any and all terms of conditions with

their board. It provides every possible option that you could think of.

Section 49 approved.

section 50.

MR. GABELMANN: A couple of things on this section. First of

all, the way in which

section 89 of the School Act is amended appears —

and I ask the minister if I am correct in this assumption — to say to

school boards that their powers are as broad as they want, except where

they are prohibited by law. That would be the new situation: that

school boards have whatever powers of management or responsibility they

choose, except where prohibited by law. Heretofore the powers were the

other way around: school board powers were only those powers granted by

law. Is that a fair assumption to conclude from these changes?

HON. MR. BRUMMET: Mr. Chairman, what this clause does is

provide the school boards with the power to perform management

functions, even if they are not specified in the legislation. To use a

ridiculous example, nowhere in the legislation does it say that a

school board may provide drinking-water to students where the well goes

dry. But if they have these powers, then they can do it, and they have

the right to spend the money to do it. That is as I understand this

legal phrase which is put in — to make sure that boards can do things

that are not specifically stated to be done in the School Act.

However, I would remind the member that the agreements that people

negotiate in place and the act and all of these things preclude them

from doing just anything they want. These are just minor things that

they can do in the management function.

MR. GABELMANN: The last part of the minister's answer opens

up the next question I am going to get to in a minute, which is another

major issue.

What the minister said in the first part of his answer does answer

my question. Essentially, boards heretofore have had the power to do

things that were prescribed, and if they did anything beyond what was

prescribed by statute or regulation, then they were in effect acting

outside the law. Now they are being given these management rights to do

whatever they want in terms of managing the system, except those things

prohibited by legislation or regulation. I assume that that's what the

minister was saying to me, and I just wonder if that is correct.

HON. MR. BRUMMET: No, Mr. Chairman, I didn't say that they

can do anything that isn't restricted by the act. There are still other

restraints, and it could be challenged and that sort of thing.

What it does is provide the management function to perform acts that

are not specifically provided for in the legislation. That has come

from several Court cases. It is being included in more legislation so

that if a board does some minor thing, and someone says it is not in

the act, and therefore they did not have the power to do that.... This,

in effect, gives them the power to do it, but I am sure that it is

challengeable if it is beyond that.

It is not ominous. I don't think it is intended to be anything of

that nature. I am told by the legal advisers that for the board to be

able to carry out certain management functions, this type of clause is

necessary.

MR. GABELMANN: I am not going to pursue it any further. I'm

not sure we are entirely on the same wavelength, but I am not sure

either that it matters at this stage.

I want to talk about the words: "Each school board is charged with

the management of the public schools in its school district and of

persons" — in effect, the management of persons employed by it in those

schools. The key words are that the board is charged with the

management of the public schools. That's the kind of clause that exists

in virtually every public sector statute that establishes authority to

manage.

Section 10 of the Hydro act is an example of that kind of

section.

It is impossible to discuss this in any detail without discussing it

in context and in conjunction with

section 35 of Bill 19, because that

section effectively says: "Where a provision of a collective agreement

would, if implemented, have the effect of preventing, or in any way

limiting the exercise by any person of a power, authority or discretion

that is conferred by

an Act, that Act prevails...." So to set the

argument, the proposed amendment that we're discussing ostensibly

provides management authority to school boards. It's a

management-rights clause, of a kind, and gives the right, in effect, to

do all of the things you do when you manage — you hire, you do all of

the other things — in the constraints of the legislative framework. But

section 35 of Bill 19 takes away the right of the union or the

the rights of management to manage.

Unless there's an indication — perhaps from the Minister of Labour

and Consumer Services (Hon. L. Hanson) — that

section 35 of Bill 19 is

going out the window, we can't have a reasonable discussion about

section 50 of this bill. Because all of the rights that are ostensibly

granted to a group of employees, should they choose to certify with

their school board employer.... All of the contract language that might

mitigate against, if I can put those two words together....

[ Page 1149 ]

School board powers will be thrown out by what would become

section 65 of the Industrial Relations Act.

I don't know whether the minister has considered the implications of

this

section in connection with

section 35 of Bill 19. I'll stop at

this point, because if he has, and he has a good answer for me, or if

the Minister of Labour has a good answer for me on this, then perhaps

we don't have to have a very long debate about it.

[11:00]

HON. MR. BRUMMET: I think we do need to deal with this. In

subsequent sections there are clauses or amendments that will clarify

what the board can or can't do — what can or can't be negotiated, and

that sort of thing. But I also maintain that if we get back into the

principle of Bill 19 and all of the clauses of Bill 19 in relation to

this, we could be here all day on Bill 19, and I wouldn't want to

deprive the Minister of Labour of that pleasure. You're presupposing

that that

section will pass — which I can't presuppose at this point. I

might be hopeful, but I cannot presuppose the House.

MR. GABELMANN: Mr. Chairman, the problem we have here is that

in parts of the bill under discussion we have rights being given that

haven't existed before: rights to trade union activity by teachers,

rights to collective bargaining and all that that entails. We've got a

clause now under discussion that takes away all of those rights to

bargain collectively — potentially, if

section 35 of Bill 19 passes.

And in all the discussion that's gone on since April 2, I don't know

that this point has been understood by many people. It may well be

properly and thoroughly understood by members of the government caucus;

it may be. I'm not convinced, however, that it is.

What we have is a situation where on one hand, powers or rights of

trade union activity in certification — bargaining, presumably the

right to strike and all of those things that go with the right to

certify under trade union legislation.... All of those rights are being

granted. Then a management rights clause is inserted, through the

section we're now discussing, in the School Act, which is negated by

another

section of a bill that's to be discussed in committee some days

from now.

You grant the right to bargain, to certify, to bargain, then you put

a clause in which says, in effect, that none of the management rights

that are conferred by statute can be bargained away. The clause under

discussion is a management rights clause which gives management in

school boards the right to manage, to do all of the things that

managers do.

The jurisprudence on this, the decisions of both labour boards and

courts, is clear, in my view, in terms of what this means: statute

overrides a collective agreement. If the statute says the board has the

right to manage, how can a collective agreement establish some

impediment on that right to manage? The minister says to people near

him that it doesn't say that. The words of the

section under discussion

in subsection (2) are, "Each school board is charged with the management

of the public schools in its school district" — a wide open,

unrestricted management clause. It doesn't say each school board is

charged with the management of the public schools in its school

district subject to whatever collective agreements may have been

negotiated between the school board and its employees acting

collectively, or words to that effect. It says the boards have the

right to manage.

All a collective agreement really does is nip away at management

rights. That's the whole underlying philosophy of the issue. If you

don't have a collective agreement, you have unfettered management

rights. The management rights are to hire, to fire, to set salary

levels, to determine conditions of employment, to decide things like

whether you get paid for lunch-hour supervision — a whole range of

issues. Management has the right to do all of those things if there is

no collective agreement.

The whole idea of organizing and certifying and bargaining is to

take away some of those management rights. That's all trade unionism

has been over the course of history — trying to get some rights into

the hands of the group away from the owners or the managers. So you

establish the right in other sections of the bill to allow this group

of employees to have the right to nip away at the management rights.

Then you have a clause, this clause we're discussing, which says that

the school board is charged with the management of the public schools.

It is not qualified in any way; it's the management of the schools,

period. You look then at

section 35 of Bill 19 and it says, in effect,

that no collective agreement can do anything that would affect the

rights conferred upon managers by their statutes, in this case the

School Act. The rights conferred upon school boards by this act that

we're now debating are the right to manage. You can't have a collective

agreement if you have this

section giving management rights, to be

followed perhaps later by

section 35 of Bill 19.

The whole ability to bargain a collective agreement is entirely

negated. That's an argument we'll make later at another time in this

committee when we get to Bill 19. This is the same situation for all

public sector employers.

Not to stray too far from the point here but just to give an

illustration to try to put it into context, if this legislation is

passed and you work for Metro Transit and your employer has had the

inability to hire part-time drivers because the contract wouldn't allow

it, as this legislation is packaged, the other legislation will now

allow managers to hire part-time drivers no matter what the contract

says. The same thing here in the school situation. School managers will

be able to do things that the contract says they can't do. Why? Because

they have the right to manage, (a); and (b), acts are paramount over

collective agreements.

That's the argument and I've made it in two or three different ways,

and I don't want to keep repeating it, Mr. Chairman, because I have no

intention of abusing the rules of the House; but I'm going to have to

pursue it....

Interjection.

MR. GABELMANN: Well, there's a difference between stretching

and abusing. Unless the point is understood and dealt with, we have a

problem, unless I'm wrong, and I'd love for the minister to demonstrate

to me why I'm wrong about this conclusion.

HON. MR. BRUMMET: Mr. Chairman, given the time and without

abusing the rules of the House, I think I can prove the member is

wrong. If you read

section 53, which we're coming to — and this is one

of the unfortunate things; people are looking at one

section of the act

at a time, and in turn, instead of getting perhaps someone in research

to try to tie it together.... That would certainly be very helpful,

because

section 53(4)(b), for instance, says: "...the terms

[ Page 1150 ]

and conditions, not inconsistent with paragraph (a), of an agreement

between the board and the association...." It says an agreement

between the board and the association. If you look at

section 64, where

an association enters an agreement under subsection (1), the agreement

is binding on the board and the association and all teachers employed

by the board. It doesn't say you can manage and ignore any agreements.

The example that you used of the management right...but there is

an agreement.... The agreement is there. It is the only place where I

think any of this legislation says that the agreement isn't valid if it

is in contravention of the act, but that does not mean that it's in

contravention of management. For instance, the clause that we're

talking about now says that it has been charged with the management of

the public schools in its school district and people employed by it. It

doesn't say: "despite any agreement." Take a look at

section 64(2) and

section 73:

"Where there is a conflict between the Industrial Relations

Act or the application of the Industrial Relations Act to teachers and this

Act, this Act prevails, but nothing in this Act limits (

a) the right of a teachers'

union to declare or authorize a strike, (

b) the right of a board to declare

or authorize a lockout, or (

c) the right of a teacher to strike...."

When you tie it all together, it does not negate.... By saying

boards have the right to manage schools, it in no what negates signed

agreements between them. You can't undermine the agreement, when the

agreement between a board and an association or a board and a union

under the Industrial Relations Act is a binding document signed by both

parties.

MR. GABELMANN: Mr. Chairman, I'm sure that the minister

believes what he's saying, and I am also sure that the minister intends

to have happen what he's saying. I'm not just in a charitable mood; I

honestly believe that the minister would like to have happen what he's

saying, and believes that that's the appropriate way for the system to

work: school boards are given the right to manage in a more broadly

based way by this amendment, and collective agreements can limit some

of those management rights. I'm sure that's what the minister has

intended.

But in law it doesn't matter what the minister's intention is. It

doesn't matter what is said in this Legislature. It matters what the

words are. The minister can cite sections 53 and 64 and 73, as I think

he did. I've just looked quickly at them, and sure, those are areas

that on the surface allow — in different ways — for collective

agreements to exist and for powers therefore to be stripped from

managers in the school system. That's what the collective agreement

does, in effect: reduce the powers, or temper them. But that's not

reading the law the way the law is written. You have to look at how

courts interpret words.

This amendment provides for the unfettered right to manage. By the

statute, there is no qualification of any kind on the right to manage.

When I say by the statute, I mean by the statute as it will be amended.

Each school board is charged with the management of the public schools.

You have to read that in conjunction with this: "Where a provision of a

collective agreement would, if implemented, have the effect of

preventing or in any way limiting the exercise by any person of a

power, authority or discretion that is conferred by

an Act, the Act

prevails."

What is the power, authority or discretion conferred by

an act? It

is the power, as we're discussing right now, to be charged with the

management. We may say in here, and we may all agree, that obviously

that management can be reduced or can be affected by a collective

agreement in a reasonable world. I think 90 percent of the members of

this House would agree that that's a reasonable thing to have happen.

But it can't happen given the language of these two different acts.

I've had enough lawyers — who deal with this kind of stuff daily,

unlike us, and who make a living as wordsmiths or as word interpreters

— tell me that because of the melding together of these two bills, that

will be the effect: the management right, which is unfettered by

legislation.... Each school board is charged with "the management," and

you cannot argue, Mr. Chairman, that subsequent sections such as

53(4)(

a) and (b).... The minister cited 64 and also 73. You can't argue

that

those are reductions on the ability provided by (

f) of

section 89,

because that's the management rights clause. That's the authority

that's referred to in Bill 19.

That's the major argument and that's the major concern. I guess

that's one of the reasons why there has been such an outcry in British

Columbia in the last six or seven weeks. These are the real impacts of

this kind of legislation, and nobody on the government side seems to

understand that.

The minister suggested — just to go up to 53 for a second, without

paragraph (

a) of an agreement between the board.... What he was

arguing, essentially, was that the board can establish a collective

agreement with teachers, one way or the other. But it says: ".... not

inconsistent with paragraph (a)...." Paragraph (

a) says, "the provisions

of this Act....," which means that the provisions of this act are

paramount. You can't bargain something that the act doesn't allow.

Right? There's all kinds of law on that.

One of the things the act says is that boards have the right to

manage. All of the legal

interpretations of that are that that can't

then be fettered by a collective agreement. And this is an argument not

just for school boards; it's for every public sector employer in

British Columbia. I guess we'll have that debate when we get to 35 of

19, unless it's amended, which it will have to be. We'd be a lot better

off right now if the Minister of Labour hadn't left and could have

given us an indication of what his intentions are on this section,

which is potentially the most devastating bit of law that I've ever

seen introduced in this House, in terms of its impact in the way that

judges and courts are going to have to interpret it. The minister may

disagree. His advice may be contrary to what I'm saying. The advice

I've had from quite a number of people who are professional in the

field is that, taken together, this means that a collective agreement

that fetters management rights will not stand up because of the acts

taken in

section 35.

HON. MR. BRUMMET: I think the member made the point that you

can't read this without reading it in conjunction with something else

and in conjunction with something else. That was really what I was

recommending. There is an obligation. If people are going to look at

one phrase in one clause, it must be considered in conjunction with

everything else. The member, I would suggest, Mr. Chairman.... There's

a lot of questionable.... You're certainly stretching the rules of

order here. I would say that even your lawyers

[ Page

1151 ]

who have been advising you have an obligation to keep up to date. So

I would highly recommend that they read the amendments that we

introduced on Monday in this House. I could refer the member to and

ask, perhaps, that they study the amendments to

section 73, which

indicate that where there is a conflict between this act and the

Industrial Relations Act or the application of the Industrial Relations

Act to teachers, this act prevails. And in this act it gives teachers

that agreements that are signed are binding on both parties. So I

really think that if you're going to talk about reading in conjunction,

then somebody had better do that. Perhaps before we made this

amendment, maybe your lawyers had a valid point, but I question it now.

MR. CHAIRMAN: The member for North Island. [Applause.]

HON. MR. BRUMMET: They woke up.

MR. GABELMANN: Well, Mr. Minister, you woke them up. You

finally got spirited. This is what this committee should be about,

spirited and lively debate.

Let's say for a moment that the minister is right in his....

HON. MR. BRUMMET: Just for a moment?

MR. GABELMANN: Yes, just for a moment. Let's say for a moment

that he is right, that on one hand there are sections — and I agree,

you can read

section 73 that way — in the bill that provide the

following powers. You have to concede as well that there are other

sections in this and the other bill that provide other powers. The

least we're going to have is litigation coming out of our ears for the

next year or two that is going to do no good whatsoever to developing

some peace and harmony and some educational values in our education

system. Not all school boards are going to litigate on this point; most

of them are going to say: "We want to allow for our unionized employees

to have full bargaining rights." But you can bet there will be some

school boards in this province which, faced with a situation where

teachers have chosen to certify, will take advantage of advice given to

them by management lawyers, which will be that they have a fair shot

using

section 35, the new 65 of the Industrial Relations Act. They've

got at least a fair shot — if not a winning case at throwing out a

collective agreement.

I'll leave it at that; I've made my point. Anything more I say is

just repeating the case; but there is at the very least a lot of

argument on this point, and I would contend that, in fact, they may

well have a winning case, at which time we'll have to come back to this

Legislature to amend legislation after the fact, after having gone

through a year or two of expensive and counterproductive litigation. We

don't need that kind of thing in this society anymore.

Section 50 approved.

HON. MR. VEITCH: I beg leave to make an introduction.

Leave granted.

HON. MR. VEITCH: Seated in our gallery today is a very

distinguished British Columbian, the chairman of the British Columbia

Public Service Commission, Mr. Graeme Roberts. I would ask this House

to bid him welcome.

MR. MESSMER: I'd like leave of the House to make an introduction.

Leave granted.

MR. MESSMER: I would like to introduce a special person in my

life, a person who is visiting Victoria this week and who will be

celebrating her eightieth birthday on June 2. While she has been in the

House many times, this is the first time she has been in the gallery to

witness democracy at work. I wish the members would give a warm welcome

to my mother Hazel.

section 51.

MRS. BOONE: My question has to do with the original

section

and the fact that.... It is a problem that I faced when I was on the

board. "On the advice of the school medical officer, a board of school

trustees may require a teacher or other employee to undergo an

examination (

a) by a medical practitioner, and to submit to the school

medical officer a certificate signed by the medical practitioner...."

The problem that we had at one point — and this is a very real problem

— was that the school medical officer.... As you know, there's a

tremendous problem in this province keeping our medical health

officers. They are generally in the health units, the head of the

health units, the medical health officer from the health units.

At one point I know the Peace River district didn't have a health

unit officer, medical health officer; the northern interior health unit

did not have a medical health officer; the Skeena health unit did not

have a medical health officer. We were faced with a situation where our

medical health officer was located in Kamloops. We had a situation that

was a very desperate situation, and we were faced with the necessity of

transporting documents down to the medical health officer to have them

approved and signed by him and back to us in order to implement this

section of the act.

It was very scary for us as the elected people, because we were

dealing with a person who we felt should not have any access to the

classroom, yet we legally did not have any right to keep that person

out of the classroom because we were unable by virtue of distance to

get the medical health officer's signature.

Can the minister look at some provisions to enable boards to deal

with this when medical health officers are not in the immediate area?

Right now we are very lucky because you too have a medical health

officer and the Prince George area does as well. But it could very

easily happen that we will be faced with a situation where there isn't

a medical health officer right there, and where something is needed to

be done right away.

Can the minister advise as to what can be done, given the fact that

the situation is here, that it must be signed or submitted to the

medical health officer? Can the minister advise what could be done to

prevent this sort of situation taking place?

[ Page 1152 ]

HON. MR. BRUMMET: I find what the member is putting forth is

very interesting, though highly irrelevant really to this section. All

that this

section does in Bill 20 is say what used to be in the School

Act, and because of the redefinition of teachers, it now simply says it

includes teachers, administrative officers and other employees, where

it said teachers and other employees in the past. So that's all that we

are amending here.

I would perhaps recommend that the member check

section 58, because

this new legislation does give the board some of the powers that the

member is talking about, though not relevant to this section. Could I

point out then that

section 51 does nothing more than.... Because of a

redefinition of "teacher" in the legislation — it includes teacher,

administrative officer, and employee — all it does is make sure that

all of the people that used to be included are included.

MR. CHAIRMAN: Just before we proceed, hon. member, the Chair

also noticed that your previous question was somewhat out of order. But

in view of the mood of the House, I will let you continue. I'm pleased

that the minister responded. But you might bear that in mind, as you

stand to follow up on your previous question.

MRS. BOONE: I understand that

section 51 amends

section 107,

which includes this. I'm not criticizing the amendment. I think the

amendment is fine. I am asking about a very real problem, and I think

the minister should be aware of its existence, because this amends 107

in the act, from what I understand. I don't know why you wouldn't

consider it as being in order here, but....

MR. CHAIRMAN: The problem, hon. member, is that we are

dealing with

section 51, which deals with the administrative officer,

teacher and employee. What you're dealing with is beyond the scope of

this amendment. Perhaps you can phrase your question in a little

different way. I'm sure the minister will be pleased to answer if he

can.

MRS. BOONE: Well, I'll just leave it at this, I think the

minister understands my concern in this area. It is something that I'd

like to see addressed at some point — and maybe it is addressed later

on; it's hard to jibe all these things together. But it is a concern

that we had, and I'd really like to see it addressed sometime by the

ministry.

[11:30]

Sections 51 and 52 approved.

section 53.

HON. MR. BRUMMET: Mr. Chairman, I move the amendment standing in my name on the order paper. (See appendix.]

Amendment to

section 53 approved.

section 53 as amended.

MR. GABELMANN: I have three areas of concern, or queries. Let

me put that another way: there are three areas that I want to talk

about. The first is relating to.... Well, rather than dealing with the

numbers, because they get confusing.... "Every appointment made by a

board, except a probationary or temporary appointment made under the

regulations, and every contract of employment made for that purpose

with a teacher shall be deemed to be a continuing contract until

terminated...." That section, by having repealed subsection (2) and

replacing it with what I've just read, appears to eliminate the

provision which prevented school boards from hiring permanent employees

to replace teachers who were dismissed but whose appeal is still alive.

That's my understanding of what has happened with these amendments.

Just to say it again, so that we're clear, if a teacher is dismissed

for cause, there is an appeal underway. Until now, the school board

could not hire a permanent replacement until the process of appeal was

complete. As I read it, this change will allow the school board to hire

a permanent replacement for the person who's lost his or her job. If

I'm right about that reading of the implications of these changes, what

does that do to a fundamental right in our society, which is that

you're innocent until proven guilty and your guilt is not determined

until all your appeal avenues are exhausted? When they are exhausted

and your guilt still remains in place, then you're guilty. In other

words, if you're fired, you have an appeal process; you're not guilty

until that appeal process is over.

That's a fundamental — or should be, at least — right in our

society. But by eliminating subsection (2) of

section 119 of the School

Act and replacing it with these words, it appears that school boards

are not — putting it in the negative rather than the positive —

prevented from hiring permanent replacements for those teachers whose

cases are still in the appeal process. And if so, why?

HON. MR. BRUMMET: I suppose the member is right in that

sense, but there is also another provision in the legislation where the

board of reference or the inquiry may, as one of their orders, tell the

board to reinstate the member, and they must do so.

MR. GABELMANN: I agree. But then why eliminate the provision

that prevented permanent appointments from being made in these

situations? Why is that eliminated now?

HON. MR. BRUMMET: Mr. Chairman, I suppose the short answer is

that when we go to full bargaining rights and the provision to bargain

MR. GABELMANN: Yes, where teachers choose to certify, but not

in those areas where they choose to go the old route, the association

route. Presumably they don't have the right to bargain those kinds of

conditions there. If they do, it is beyond the salary and bonus

discussion, it seems to me.

I don't know this subject as well as I should, perhaps. But the

minister could perhaps tell me that in those areas the associations

also have the right to bargain protection for these kinds of

circumstances.

HON. MR. BRUMMET: I think the member would find in the

subsequent

section that associations or unions, either and both, may

under the amendments.

MR. GABELMANN: I agree. It's confusing....

[ Page

1153 ]

HON. MR. BRUMMET: That's one agreement.

MR. GABELMANN: There are probably more.

It is confusing. I don't understand. Just to make a general point

about this issue, one of the reasons why it causes confusion is that

the word "association" is used to describe associations and also trade

unions, which is a curious kind of drafting suggestion. However, that

is by the by.

The second issue I want to pursue is potentially more important and

more threatening. It is

section 119(4) of the amended School Act,

of a collective agreement. That may not be the best way of putting it,

but that is one way of putting it. The collective agreement in effect

or the contract between boards and teachers in general — small "t" on

teachers — includes provisions of the act and regulations under the act

negotiated that are not contrary to legislation negotiated under the

IRA, and thirdly, individual contracts. I want to come to individual

contracts later.

But then at the end of this section, it says: "...and a provision of

any agreement or contract excluding or purporting to exclude the

provisions of paragraphs (

a) and (

b) is void." At one level you can

read that as the traditional kind of language. If it's to be read this

way, I don't have a lot of problems with it. It would say, in effect,

that you can't have a clause in your collective agreement which says

that provisions 119(4)(

a) and (

b) are not applicable to this

contract. You can't have that kind of contract language overriding

statute. That's what's intended. I think that even without having the

language in the act as you've got it, you've probably got that right,

because I suspect that any tribunal or board or court would so judge.

Nevertheless, you've put it in.

I don't know whether this concern is valid or not, but I want to

express it because it is a concern that's been expressed to me; it's a

concern that I think could exist, and it is as follows. If regulations

are developed after the fact.... Let's go through the process. There's

certification, there's bargaining, there's a collective agreement

signed — all legal under this particular section. Then cabinet says to

itself: "We don't like a certain provision that was bargained, so we're

going to add additional regulations, attendant to the School Act, which

will say that you can't bargain for the following condition that may

have been bargained.

Let me just give a hypothetical example. I don't mean this to be a

real example, because I have no doubt the government wouldn't want to

pursue this. Let's say a contract between teachers and their board

includes the provision that noon hour supervision must be paid at a

certain rate above and beyond the regular pay of the teacher — an

hourly rate of $20 an hour, let's say — and the cabinet says: "We don't

like that. The teachers are paid their fair salary. We're going to pass

a regulation saying that it's not allowed that teachers be paid for

noon hour supervision," after the fact of the bargaining. I would

assume that that would be legal under this section, and if I'm right, I

want to pursue it a little bit further.

HON. MR. BRUMMET: I think the member has to realize that this

gives.... I know he doesn't have any trouble with the agreements not

being inconsistent with the act. I think you accept that, but I can't

see the example cited standing up legally when boards have been given

To try to negate an agreement with an order-in-council I don't think would stand up.

MR. GABELMANN: The words are: "....and a provision of any

agreement or contract excluding or purporting to exclude the provisions

of paragraphs (

a) and (

b) is void." So let's shorten that. I'm quite

happy to concede that

I'm on the wrong track here, but I'm not yet convinced.

Shortening that says, in effect, that a provision of a contract

excluding provisions of paragraph (

a) is void. Now could that mean that

if contract language is developed which is contrary to regulations

developed under the act...? Let me put it another way. If the

regulations say one thing and the contract says another, presumably the

regulations apply. Am I right?

HON. MR. BRUMMET: When we get into these supreme legal

technicalities.... I think the member's first reading of the

legislation was correct: you can't use some other way to undermine the

conditions of

section 119. I suppose "valid regulations," by

definition, means that they will stand up; but if they're not valid,

then they won't. I'm not quite sure what the member is trying to get at

here. Hypothetically, anything could be done; a government, or

somebody, could always pass a law to undermine a law that exists. I

don't know that any legislation isn't subject to change of law.

It has to be fairly clear that in this legislation the government

has chosen to give full bargaining rights to teachers, to the best

extent that it is all defined in the legislation. Where conflicts were

pointed out — that it may be taken away, on the other hand — that has

been remedied in these amendments. Having given full bargaining rights,

we are hardly in a position to pass a regulation to negate full

bargaining rights, which we've gone to all the trouble to give in an

act.

MR. GABELMANN: I appreciate the minister's attempt, but that

was a C-minus. The minister didn't really answer my question. We know

what the answer is. My question was: if the regulations to the School

Act and the language in a collective agreement are contradictory, then

the regulations apply. I think the answer to that is yes. Certainly the

answer is yes in respect of the act.

[11:45]

We all agree that the law supersedes collective bargaining, under

the way the statutes are being written — no question about that. The

law also includes regulations. So I think we agree that the provisions

of this act, and any regulations, supersede, if they're in conflict,

any contract language that may be negotiated and agreed to.

Straightforward stuff, and I think that's right. I just want to go

through it step by step to make sure that we agree so far; and I think,

from the minister's response, he does.

Let's just step back a bit. Everyone who's concerned about the

nature of a collective agreement between a board and its employees

knows what the rules are when they go into those discussions. The laws

are clear, they're evident, they're public. The regulations are not so

public. The debate certainly is not public at all, but there is a

process and there are regulations. If teachers negotiate freely clauses

in their collective agreements which are agreed to by their employers,

and which the government doesn't like, the government says: "We didn't

think of this. We didn't think that might occur back when we drew up

the legislation, or when we drew up

[ Page 1154 ]

the regulations. Therefore, we're going to bring in regulations negating that particular contract clause that we don't like."

It's one thing to introduce amendments to the act in this

Legislature and have a public debate about them — about a provision

which would strip a freely negotiated contract clause away from people.

It's bad, and I would argue strenuously against doing that, because of

the retroactive nature of it. But it's another thing when it's done by

regulation, because when it's done by regulation, it's done in cabinet

without any public debate or any public scrutiny; without any

opportunity for affected parties to even make representation about the

change, which may have been generated in cabinet, not through any kind

of bureaucratic process.

It may appear to some members of the House that this is nitpicking

or clutching at straws; it's not. It's a fundamental point here.

Whether we like it or not — and some members of the House may well like

it; I don't — we should understand that collective agreements

negotiated under this legislation can be stripped away, eliminated or

have anything else done to them by order-in-council.

I am not suggesting that that's what the government is going to do.

The minister said: "Why would we go to all this trouble to provide

collective bargaining and then take it away?" I am not suggesting that

the government is going to allow bargaining to take place and then take

it all away. But the door is wide open for the government to pick any

negotiated clause it chooses and to say, by regulation, that it is not

allowed. I think that is inappropriate and unwarranted power for a

government to have in respect of free collective bargaining between

employers and employees. I wonder if the minister has any thoughts on

that.

HON. MR. BRUMMET: Mr. Chairman, I am rather honoured that the

member attributes all these hypothetical possibilities and powers of

the government to this particular clause, let alone this legislation.

Suppose that what the member is saying is correct, that a regulation

could be passed.... Under everything we have now, a regulation could

have been passed in an attempt to undermine any clause in any

collective agreement that now exists or has existed over the last ten

years. For instance, what is to stop the government passing a

regulation to say that there shall be no overtime pay, even though it

is in collective agreements? I am talking about last year, ten years

ago, whatever you like. Hypothetically, I suppose that is possible. But

pragmatically, I cannot see it happening; nor can I see the government

getting away with it. To all of a sudden say that this legislation,

because it doesn't specify somewhere that the government may not pass

any regulations to do anything that is against what is in collective

agreements, somehow or other opens up a whole new door that doesn't

exist now.... The government could come in and change the legislation

to take collective bargaining rights away from the teachers. The

question then is: would it be viable?

So yes, through legislation or through regulation, there are all

these hypothetical and possible powers. They could pass a regulation

tomorrow that the Minister of Education's salary should be halved —

hypothetically. But I would hope they wouldn't. But there is no

legislation that says they can't try that regulation, whether they have

done away with it under other statutes or.... It certainly wouldn't be

with the consent of the minister. These are the sorts of things we are

getting into — these hypothetical straw men that could be created, that

exist now. Nothing has changed.

The legislation here is not the minister's intent; it is not what

the minister foresees or hopes to achieve by this. That's why it gets

so complicated; it's an attempt to draft it to make sure that all of

these things that are possible to cover are covered. If they left it to

the minister, I would write it in one clause and then let people go

ahead, because my intent is that common sense should prevail, but

everybody else wants legal

interpretations.

We've had massive discussions on what might be, what could be, what

it doesn't say and that sort of thing. I keep defending that this is

what we've covered in the legislation to the best possible extent. I

know that sometimes in court cases the lawyers have a lot of arguing. I

guess if all lawyers agreed, there wouldn't be a court case, would

there?

MR. GABELMANN: And if all politicians agreed, there wouldn't be a Legislature?

The minister's salary couldn't be halved by regulation; there's a

statute in place. There's a big difference. It requires discussion in

this place. I think that's what we're talking about here.

HON. MR. BRUMMET: What's different?

MR. GABELMANN: What's different?

I would agree that the intent of the government, as demonstrated by

this legislation and by the minister's statements, is to provide

relatively free collective bargaining. It's hampered in a variety of

ways, but there is a genuine desire to allow that to happen. That's a

point that I would concede. But what the act does is confer authority

on 75 employers out there. It may well be that 70 of those employers

will have exactly the same attitudes and motives and, therefore,

behaviour. But when you allow loopholes or when you allow whatever to

be opened up by words in this act....

Let me just say in parenthesis that I agree with the minister. I

would prefer that the law said workers shall have the right to bargain

collectively, period. Let them go to it: voluntary recognition, develop

their own rules, everything. It's the same as when I go and buy a pound

of nails from a hardware store. If I want to buy 100 pounds of nails

and get a cheaper price, I can bargain with that hardware store owner,

under which I can haggle. It's free collective bargaining between the

hardware store owner and me. I actually prefer it. If that's what the

minister was saying, that he'd prefer laws that were either absent or

simple, then I agree. I think society would be a heck of a lot better

off. If that makes us both libertarians or anarchists, I don't know,

but it sure would be a better direction than the direction we're going.

I only make the point — and I won't pursue it much further on this

issue — that that sword, under law, hangs over every set of collective

bargaining negotiations that go on in each of the 75 districts, the

sword being the potential threat that if the school board members don't

get their way and are "forced" to give up on a clause that they didn't

want to give up on but have to because of the way collective bargaining

works, they can go have a private meeting with a cabinet member —

presumably the Minister of Education, or any

[ Page 1155 ]

other cabinet member — and persuade cabinet that a regulation should

be drawn up that will negate that particular clause that was agreed to.

I'm not saying it'll happen, but the right, power and ability are

there, and I think that's wrong. If two parties, the employer and the

employee, agree freely to do something, the government should keep its

nose out. And it should keep its nose out not just directly, but it

should also keep out of law its right to put its nose in. There

shouldn't be provisions in law that allow the government to stick its

nose into private matters between a group of employees and their

private matter, in the legal sense. They are a public matter in many

ways, in terms of how they impact on the public, the taxpayers and

everything else; I acknowledge that point. But in a legal sense they

are a private matter between the employers and the employees. Yet the

government wants to have all kinds of rights to intervene should it

choose to later on. I just want to make that point because I anticipate

it'll be an issue some day down the road, two, three, four years from

now, and I want to go on the record now so that when it does happen, I

can say: "I told you so." Although I don't much relish saying that.

The third issue I want to pursue under this section, just before the

clock proceeds, relates to individual contracts. That's (

c) of

paragraph (

a) and (b), agreed between the board and the teacher...."

I assume that means the individual teacher, and not the teacher in the

collective sense. Is that correct?

HON. MR. BRUMMET: Yes, that is to provide for some anomalies like a

band teacher who might be hired on a fulltime basis, but to work from 4 o'clock

in the afternoon till eight, or something of that nature. So there can be those

contracts without excluding the provisions of subsection (

a) or (b). There may

be a general contract, and there may be an anomaly that they could do with an

individual teacher. So if the contract reads,"The school day for teachers

is by mutual agreement from X hours to Y hours," this is a provision that

allows for them to provide.... Within that, they can also do some other

things, but I'm sure that the collective agreement will look after that.

MR. GABELMANN: The normal way of doing that is if the

employer wants to allow for some flexibility in scheduling work, which

is what the minister is talking about: the band teacher teaching from

four to eight, or a phys ed teacher coming in an hour earlier, or a

whole variety of possible potentialities. The normal procedure there is

that you work that into the collective agreement: the group would

agree, the teachers would agree, the board would agree that you can

vary the work schedule; you can do those kinds of things. What this

clause allows for is a situation where the collective may agree, and

the board acting as management may agree to have a clause, and an

individual teacher can go in and negotiate a contrary clause.

HON. MR. BRUMMET: Just very quickly, a teacher cannot go and

negotiate a separate contract with the board, because there is another

place where all teachers are covered. This one does say that it may not

exclude or purport to exclude the provisions of paragraphs (

a) and (b).

Therefore, the individual agreement would be void unless it complies

with that. So it's just allowing it.

MR. GABELMANN: I agree.

The House resumed; Mr. Speaker in the chair.

The committee, having reported progress, was granted leave to sit again.

Hon. Mr. Strachan moved adjournment of the House.

Motion approved.

The House adjourned at 12 noon.

Appendix

AMENDMENTS TO BILLS

AMENDMENT

20 The Hon. A. J. Brummet to move, in Committee of the Whole on Bill (No. 20):

intituled Teaching Profession Act to amend as follows

SECTION 53, in the proposed

section 119 (2) of the School Act by deleting everything

after "deemed to be a continuing contract" and substituting:

until

(

a) the teacher has been dismissed under

section 122 or 122.1,

(

b) the contract has been terminated as provided in this Act, or

(

c) the teacher ceases to be a member of the college., and.

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